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Legal fight for gay marriage reaches Virginia court

8:18 AM, Feb 5, 2014   |    comments
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NORFOLK, Va. (USA TODAY) -- The legal battle for same-sex marriage was fought Tuesday in the Deep South, scene of past civil rights skirmishes over school segregation, gender discrimination and interracial marriage.

For two hours inside a wood-paneled courtroom, five lawyers representing three sides of the argument - including a Virginia solicitor general whose boss last month switched sides - opened the latest chapter in a nationwide debate of historic proportions.

While about two dozen demonstrators on each side of the issue protested on opposite sidewalks outside, federal District Court Judge Arenda Wright Allen listened patiently before promising, "You'll be hearing from me soon."

Those were nearly all the words spoken by Wright Allen, the latest in a long line of federal and state jurists deciding cases on the rights of gays and lesbians to marry since the Supreme Court advanced the cause in two landmark decisions last June.

The attorneys for the two couples challenging Virginia's constitutional ban on same-sex marriage argued for a preliminary injunction that would allow those marriages to take place immediately. In an odd twist prompted by state Attorney General Mark Herring's decision to switch sides, his solicitor general, Stuart Raphael, also opposed the state's ban. But he said any injunction should be stayed until higher courts weigh in, lest marriages are consummated and then annulled.

"Only the United States Supreme Court can decide this issue," Raphael said. "It's got to get there."

The case is one of 47 same-sex marriage lawsuits pending in 24 states, one or more of which is almost certain to reach the high court within the next year or two. Because Norfolk is in the federal court system's 4th Circuit, which tends to act quickly, its case might be the one.

That would suit Theodore Olson and David Boies, the high-powered legal team brought in by local attorneys to argue the high-profile case. They put on a tag-team display Tuesday that led Carol Schall, one of the plaintiffs, to remark after the hearing: "There were moments that were slam dunks."

"Virginia erects a wall around its gay and lesbian citizens, excluding them from the most important relation in life," Olson said. Boies added, "On the other side, all you have is a desire to preserve the status quo."

That history and tradition were part of the argument coming from lawyers representing two circuit court clerks charged with issuing marriage licenses. Virginia's marriage laws date to the 1600s, and the definition of marriage is "as old as the Book of Genesis," said David Oakley, the lawyer representing Norfolk Circuit Court Clerk George Schaefer.

They also contended that the issue should be left to the state Legislature and voters, who decided in 2004 and 2006, respectively, that same-sex marriage should be banned.

"That legislative process is to be respected," Oakley said. "It's more appropriate to allow the General Assembly and the voters to make that decision."

To which Olson responded, "Sometimes the voters and the legislatures get it wrong."

Austin Nimocks, representing Prince William County Circuit Court Clerk Michele McQuigg, said the state has a right to restrict marriage to "potentially procreative couples."

"Every child has a mother and a father," Nimocks said, and it's better for those children to grow up with both - an arrangement he said "has a proven track record." As he spoke, Schall's and Mary Townley's teenage daughter, Emily, sat in the fourth row between her lesbian parents.

Action in federal and state courts has been swift since last June's dual decisions by the Supreme Court that reopened the doors to gay marriages in California and struck down a key section of the Defense of Marriage Act, which had denied federal benefits to legally married same-sex couples.

That latter decision was cited by lawyers on both sides, as Supreme Court Justice Antonin Scalia angrily predicted in his dissent last June. Those opposed to same-sex marriage noted the ruling did not affect states, like Virginia, that have banned the practice. Those arguing for marriage equality quoted freely from Justice Anthony Kennedy's majority opinion, which said the federal law had imposed "a disadvantage, a separate status, and so a stigma" on gay and lesbian couples.

Within the past four months, judges in New Jersey, New Mexico, Oklahoma and Utah have ruled that those states must allow same-sex couples to marry. The Oklahoma and Utah cases are being appealed to the 10th Circuit Court of Appeals, which will hear them in April, putting them on the fastest track toward the Supreme Court.

Seventeen states and the District of Columbia allow same-sex marriage, including the entire Northeast. Most of the remaining states have constitutional amendments or laws prohibiting the practice, forming a geographic bulwark the Supreme Court may be loath to break too soon.

The Virginia case won attention last month when Herring, a Democrat narrowly elected in November, announced that the state would not defend the ban and instead would side with the plaintiffs calling for marriage rights. Herring attended Tuesday's hearing but did not speak.

That left the circuit court clerks to defend the ban, one of the broadest in the nation. It bars gays and lesbians from marriage, civil unions and domestic partnerships, and denies recognition in Virginia to same-sex couples married in other states.

The two couples at the center of the case have been together for nearly 25 and 30 years. Timothy Bostic and Tony London filed the case originally in Norfolk days after the high court's rulings in June. Schall and Townley joined up later. They were married in California in 2008, before Proposition 8 was tied up in court, but their marriage isn't recognized in Virginia.

The two couples cannot get marriage benefits enjoyed by opposite-sex couples under Social Security, Medicaid and the Veterans Administration, as well as favorable tax treatment for income and estate taxes. Their status has caused "severe humiliation, emotional distress, pain, suffering, psychological harm and stigma," their attorneys argue.

The circuit court clerks argue that treating heterosexual and homosexual couples differently isn't unconstitutional and that same-sex marriage is not a "fundamental right." As for benefits, they contend the impact of being denied marriage can be limited by proper estate planning, contracts and advanced medical directives.

The Bostic case isn't alone in the Old Dominion. Across the state, Lambda Legal and the American Civil Liberties Union have raised similar issues in a federal class-action lawsuit on behalf of two lesbian couples. It seeks to win marriage rights for all the state's same-sex couples who want to marry or have done so in other states.

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